Many conservatives argue that a jurist who replicates Justice Scalia’s approach to law should fill the vacancy. Mr. Trump appears to agree, having vowed to nominate federal judges “in the mold of Justice Scalia.”

While Justice Scalia was a brilliant and ardent defender of conservatism, achieving a restoration of the original meaning of the Constitution — particularly its separation of powers — could be more quickly and effectively achieved by a nominee whose approach is more aligned with that of Justice Clarence Thomas.

The demeanors of the two justices could not have been more divergent. Justice Scalia was a firebrand known for opinions that were eloquent but often acerbic. Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect.

What matters most, however, is not a justice’s demeanor but his judicial philosophy. On this score, Justice Thomas’s originalism is unflinching. In Gonzales v. Raich (2005), for example, a majority of the court held that state medical marijuana laws are pre-empted because the federal Controlled Substances Act is a valid exercise of Congress’s power to regulate interstate commerce. Justice Thomas dissented, asserting that if Congress can regulate individuals’ ability to grow, possess or use marijuana for personal medicinal use, “it can regulate virtually anything,” and states will be left with little power.

Justice Scalia concurred with the Gonzales majority. Because the Controlled Substances Act broadly regulated interstate commerce in illicit drugs, Justice Scalia reasoned, states could not exempt medical marijuana patients whose noncommercial activities — such as growing, possessing and using marijuana — never crossed state lines.

(Thanks to Michael Perry for the pointer).

I think Professor Foley is right that there were key differences between Scalia and Thomas regarding their commitments to originalism, but the essay does not identify what I regard as the most important. Justice Thomas's opinions do not appear much constrained by precedent. Scalia, on the other hand, felt somewhat constrained by precedent. In Gonzales v. Raich, for example, he seemed to feel constrained by the Court's prior decision in Wickard v. Filburn (I think he was wrong to think Wickard controlled the outcome, but that's another matter). Another well-known example is McDonald v. Chicago, in which Justice Thomas wanted to shift the basis of incorporation doctrine to the privileges or immunities clause and Scalia declined to join him on the basis of precedent. My guess is that in most of the cases Professor Foley has in mind, the difference between the two Justices is explained by Scalia's somewhat greater respect for precedent.

At the same time, the difference should not be overstated. Scalia wanted to overrule a wide range of nonoriginalist cases, and succeeded with probably more than many people realize. He did not appear to have a well developed theory of precedent, and cases involving a closely divided court in which he chose precedent over original meaning are not numerous -- Gonzales v. Raich stands out because it is unusual, not because it is typical. And Thomas, for his part, has not been entirely consistent in rejecting precedent. For example, he has joined judgments and written concurring opinions applying the equal protection clause to the federal government on the basis of the nonoriginalist precedent Bolling v. Sharp and he has applied First Amendment doctrine to overturn state and federal law without questioning whether that doctrine accords with the Amendment's original meaning. So while I agree that Scalia was somewhat more cautious than Thomas is in terms of questioning precedent, I think it is more a difference in degree than in basic methodology.

In any event, I guess we'll find out the nominee later today.

UPDATE: At Huffington Post, Scott Gerber also favors Thomas over Scalia as a model for the future Justice, because Thomas better understands the connection between the Constitution and the Declaration of Independence, and because Thomas' opinions do not use such divisive rhetoric.

This article is an original work of scholarship in several respects. As the title suggests, it presents a novel interpretation of the “original understanding” of the Constitution, which I call the inherent national sovereignty theory. This theory viewed the national government as a sovereign government and Congress as a sovereign legislature imbued with the countless legislative powers that sovereign legislatures possesses. The sources of this understanding are themselves original. The article is based in part on a systematic analysis of the political debates relating to politically defining actions of the federal government in this nation’s early history: the incorporation of the First Bank of the United States in 1791; the decision to allow the bank’s charter to expire in 1811; and the decision to incorporate the Second Bank of the United States in 1816. No one has previously engaged in a systematic constitutional analysis of these political debates. I have found that bank proponents asserted Congress’s inherent sovereign legislative power to explain Congress’s authority to incorporate the First and Second Banks.

The article also presents a novel interpretation of the Supreme Court’s decision in McCulloch v. Maryland, which upheld the constitutionality of the Second Bank of the United States in an opinion that many scholars believe to be the most important in the Court’s history. Viewed for the first time within the context of over twenty years of political/constitutional debates relating to the First and Second Banks, this article shows that the opposing lawyers in this case argued the inherent national sovereignty theory and the strict construction, states’ rights theory of the Constitution popular among today’s conservatives. It shows that Chief Justice John Marshall’s opinion for a unanimous Court upheld the constitutionality of the Second Bank by affirming Congress’s inherent sovereign legislative powers. The article also shows that Congress based other actions, and the Court upheld these actions in other cases, by affirming the inherent national sovereignty theory of the Constitution.

This article is original in other significant ways. In identifying actions taken by the federal government pursuant to a theory of inherent national sovereignty, the article presents a novel rebuttal to the current “new originalists” who argue that the original understanding of the Constitution posited a strict construction, states’ rights-oriented, and fixed understanding of limited powers. The McCulloch Court expressly rejected this theory. More broadly, this article presents a discussion of the original understandings of the Constitution within the constitutional/political process of governing. In this context, proponents of inherent national sovereignty understood the Constitution as a dynamically-evolving framework of government whose meaning would develop over time through the political process and by the specific actions taken by Congress and the executive branch of the federal government.

Many of the leading political actors in the nation’s founding generation considered the constitutional/political process itself as an authoritative means of constitutional construction. They regarded congressional actions as having precedential authority in deciding questions of constitutional construction. Consequently, political practice gave meaning to the text of the Constitution. The Constitution was to be constructed by the political branches of the federal government, primarily by Congress, through the dynamic process of governing. The Court’s role was to uphold the constitutionality of congressional actions to meet the nation’s needs unless Congress exercised a power that was expressly prohibited or explicitly reserved to the states or to the people.

Inherent national sovereignty constitutionalism is fundamentally different from today’s understanding of the Constitution, of the constitutional/political process, and of the relationships of the branches of government within the constitutional structure. It entrusts much greater autonomy to Congress and the executive to govern and much greater authoritativeness to Congress’s interpretation of the Constitution in its function to make law and public policy than our system today allows. It envisions a more modest role for the judiciary in reviewing Congress’s legislative actions and the policies they entail. This theory centers policy making in the political branches of the government rather than in the Supreme Court where it currently exists. Moreover, inherent national sovereignty constitutionalism relegates constitutional interpretation in making political decisions to a less important role and requires decision makers to justify their actions on their practical merits instead of the Constitution’s meaning. In short, inherent national sovereignty constitutionalism presents a fundamentally different understanding of the way government should function under the Constitution.

(Via Larry Solum at Legal Theory Blog, who says "important and highly recommended" but also adds some fairly sharp commentary.)

01/29/2017

In the Washington Post, David M. Dorsen: Antonin Scalia, part-time liberal. (The essay lead-in notes that Mr. Dorsen is the author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions,” to be published by Cambridge University Press on Feb. 24.) From the introduction:

As President Trump prepares to name a successor to Justice Antonin Scalia, the conventional wisdom is that the choice will not change the liberal-conservative balance on the court. After all, this argument goes, if Trump chooses any of the names on his previously published list, the court and the country will simply be swapping one conservative justice for another.

That understanding is incorrect and, as the Senate considers Trump’s nominee and the impact on the court, could be dangerously misleading. This will come as a surprise to many, but in a number of important areas, including the rights of criminal defendants and freedom of speech, the justice was actually quite liberal, as that term is commonly applied. Of Scalia’s approximately 879 opinions, including comments on denials of petitions for certiorari, I have counted 135 as liberal and a number of others as arguably liberal.

One might add in as well cases that seemed "conservative" at the time they were written but now have a more liberal valence, For example, Employment Division v. Smith was reviled by liberals when decided (1990), when it seemed to withdraw constitutional protection from minority religions; but it is now the case that allows "liberal" states to require conservative Christians to comply with laws counter to their religious beliefs. And Printz v. United States, equally reviled by liberals for protecting pro-gun rights states from federal commandeering, is now the bulwark protecting sanctuary cities from the Trump administration.

To some extent, Dorsen’s article performs a useful service by highlighting (particularly for the Post’s many left-leaning readers) that Justice Scalia followed his originalist commitments to their logical ends, regardless of whether the result aligned with his personal policy preferences. These decisions give lie to the canard that the justice’s originalism was merely a pretext for him to achieve conservative policy outcomes.

Unfortunately, the piece makes the all-too-common error of classifying judicial decisions by their policy consequences — a valid metric for grading legislators, not judges — rather than their reasoning. Justice Scalia was a full-time originalist, and that’s what explains both his “conservative” and his “liberal” opinions.

I am not as put off as is Adam Klein by the essay's classification scheme. I think it's not merely useful, but incredibly important, to refute the stereotype of Scalia as the unwavering arch-conservative. For that reason, Dorsen's book may be one of the most significant published on Scalia. But I agree it is disappointing that -- at least in the essay -- Dorsen makes little effort to explain why Scalia ended up with so many liberal results. Dorsen uses the word "originalist" only once, without explanation and paired with "conservative"; he says Scalia's "jurisprudence" sometimes led him to liberal results but does not discuss that jurisprudence at all. (One hopes the book does a better job on this count). Thus the essay ends up obscuring what should be its central point: originalism may lead to liberal results. Of course it does not do so as often as liberal living constitutionalism, but it does so much more often than conservative living constitutionalism.

The Scalia-ness study is interesting, but it is also limited. Does a judge cite Scalia’s non-judicial writings because they have a particular affinity for Scalia’s way of thinking? Or because they are more prone to citing non-judicial writings generally? Do they write more often separately because they are particularly independent and principled? Or because of their relationships with their colleagues or willingness to write about extraneous issues in cases?

In addition, as I’ve discussed before, a judge’s record on an intermediate court is not always predictive of how that judge would perform on the Supreme Court. Lower court judges have an obligation to follow circuit and Supreme Court precedent and may feel constrained when it comes to addressing broader or more foundational questions in specific cases. Judges on lower courts are also less likely to be asked by litigants to reconsider precedents or pave new ground, so they have less occasion to even ask some of the larger questions.

Also:

On the subject of thinking about how potential Supreme Court nominees think, two of the three leading candidates mentioned above — Gorsuch and Pryor — recently delivered the Sumner Canary lecture at the Case Western Reserve University School of Law, and each published an article based upon their lecture in the Case Western Reserve Law Review. These lectures provide valuable insights about the law and the thoughts of these two jurists. Here are links to the video and printed version of each lecture.

I have previously argued that ontology and the philosophy of language have been misused or misunderstood in the debate over originalism. That analysis emphasized the unstated and often unacknowledged role such philosophical premises play. Because the claims of political philosophy are often made more expressly and because the appeal to political philosophy has been an important part of our constitutional discourse at least since the Federalist Papers, it may appear that political philosophy plays an important constructive role in our constitutional decisional discourse. It does not.

In this article I explore the role of political philosophy in the debate over originalism and extend the analysis of my earlier work. I defend five theses. First, originalism relies on political philosophical claims to ground its claims, occasionally expressly. In particular, originalism begins with political philosophy in its account of the social contract as the source of the Constitution’s binding force and the fundamental challenge of the countermajoritarian dilemma as a dispositive argument for the originalist interpretative methodology. Second, originalism’s reliance on political philosophy is fundamentally inconsistent with originalism’s central claims. Third, originalism’s critics also rely upon political philosophy, albeit usually of a different sort, to make their arguments against originalism and defend their alternative accounts of constitutional law and decision. Those foundational critical arguments against originalism are flawed and the use made of political philosophical claims to construct the critics’ alternatives to originalism is erroneous. Fifth, I generalize these claims and my earlier work to explain why political philosophy cannot play a foundational role in our constitutional decisional discourse.

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

The problem is, the Bone Cave harvestman is known to exist only in central Texas—only in Williamson and Travis Counties, to be exact.

John Yearwood, a third generation ranch owner whose 865-acre spread north of Austin has been in his family since 1871, is suing to remove the insect from protected status. State surveyors discovered Texella reyesi living underground on Yearwood’s property more than a decade ago when considering a road expansion project adjacent to his ranch. As a result, Yearwood, a 71-year old Vietnam vet, has been forbidden to alter his property or “harass” the insect with noise, light, or activity. Landowners who knowingly harm an endangered species or its habitat can face up to $50,000 in fines and up to a year in prison. The insect’s “habitat” is the limestone caves and crevices that are ubiquitous in central Texas. Due to the Endangered Species Act, Yearwood is being held hostage by a tiny subterranean insect that hardly anyone has ever seen or heard of. (The facts are reported here and here.)

Also:

What makes Yearwood’s lawsuit—now pending in federal district court in Austin—unique is that Texas Attorney General Ken Paxton has weighed in on behalf of the property owners. Last month, Paxton filed an amicus curiae brief that is remarkable for its fidelity to the principles of federalism and limited government.

...

Throughout his brief, Paxton cites the views of the Framers, the Federalist Papers, and Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). It is a tour de force of originalist reasoning.

01/25/2017

Further to this post in November, the authors have updated their article. The second paragraph of the abstract of this article by Jeremy Kidd (Mercer University - Walter F. George School of Law), Riddhi Sohan Dasgupta (University of California, Berkeley), Ryan D. Walters (Independent) and James Cleith Phillips (University of California, Berkeley, School of Law, Students) says:

We have updated the paper in light of recent developments (see pages 12-15). Specifically, the shortlist is now rumored to be down to three names: Gorsuch, Hardiman, and Pryor. We have calculated the likelihood that the potential nominees will be the most Scalia-like of the group, and for comparison’s sake have added data on Chief Justice John Roberts and Justice Samuel Alito from their time on the D.C. Circuit and Third Circuit, respectively. We find that Gorsuch (62.2-79.4%) and Pryor (70.5-76.7%) have much higher likelihoods of being the most Scalia-like of the potential nominees than Hardiman (34.8-42.9%). In fact, Hardiman looks more like John Roberts (32.6-33.7%) or Samuel Alito (39.4-52.8%) did when they were federal appellate judges.

Hat tip to How Appealing for this new info. More info about Judges Gorsuch, Hardiman, and Pryor is available at my link farm.

I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law. One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971. (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992).

One result of this failure to employ the constitutional amendment process is that the process is atrophying. As a matter of political psychology, people do not think enough in terms of amending the Constitution. A certain type of thinking is needed – identifying a rule that has broad support and that would improve the Constitution.

At this point, it would be beneficial to pass a constitutional amendment, even if it is a minor one, just to show that the process can still function. I have a proposal that might receive the necessary support.

The lame duck period following a presidential election leads to all kinds of mischief and some of this could be easily addressed by a constitutional amendment. If I had my druthers, I would pass a broad constitutional amendment that cut back on lame duck actions following both presidential and congressional elections, but that probably could not pass. So let’s just try a narrow one.

The President should not have the authority to pardon people following a presidential election unless he will continue in office for four more years. We have seen all kinds of questionable actions by Presidents in this period from both political parties, including some of the recent pardons by President Obama, the pardon of Marc Rich by President Clinton, and the pardons of Caspar Weinberger by the first President Bush. Some of these pardons may be defensible. I was sympathetic to the pardon of Weinberger, given the outrageous behavior of Independent Counsel Lawrence Walsh. But it occurred after the election, not before. Moreover, many Democrats believe that pardon was improper and therefore including it as part of the reason for the amendment can generate the necessary bipartisan support for the amendment.

Multiple sites are reporting that Judge Neil Gorsuch is the (new) frontrunner for the Supreme Court nomination. At Above the Law, David Lat handicaps what he hears are the (new) top four: Judges Gorsuch, Pryor, Hardiman and Kethledge (he leans to Gorsuch or Hardiman).

There’s no doubt that constitutional lawsuits have secured critical civil-right victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, ... American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

At the same time, the politicization of the judiciary undermines the only real asset it has–its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.

I sort of agree and sort of don't. Like many calls for judicial restraint, this one takes the form of: the judiciary should not intervene in the political process, except when it should. (For a book -length version of one, see here). Of course, it's not just liberals that want judicial intervention (e.g., affirmative action, second amendment, regulatory takings, federalism). The key question is, when is intervention appropriate. It is not enough to say it should be "extraordinary," because one can call whatever intervention one favors "extraordinary." And that may end up happening fairly often (after all, the Supreme Court gets lots of extraordinary cases). The answer I think Judge Gorsuch would now give is that judicial intervention is appropriate when the original meaning of the Constitution's text directs it. At least, I hope so.